TAHIR KASHIF v. SAFDAR NASAR MAHMUD

DCEC 1763/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1763 OF 2011

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REASONS FOR DECISION

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A.　INTRODUCTION

1. On 21 November 2011, the legally-aided applicant instituted these employees’ compensation proceedings against “a Chinese male known as “Ah Shing” ” (the 1^st respondent) and “Safdar Nasar Mahmud” (the 2^nd respondent) in relation to personal injuries he suffered in an alleged accident on 23 November 2009 (“Accident Date”) allegedly in the course of employment with the respondents.

2. The applicant however did not seem to have proceeded with his claim as expeditiously as he should have. Since the 1^st respondent had not been properly identified, and the address for service was incomplete, the applicant was not able to serve the proceedings on him on the address which was stated to be “an unnamed iron sheet factory situated at Ping Che near Ping Che Tsuen, Ta Kwu Ling, and New Territories”. Notwithstanding this, the applicant continued with his claim against this unidentified 1^st respondent. It was only more than 5 years after the commencement of these proceedings that the 1^st respondent ceased to be a party to these proceedings by the applicant’s filing on 4 August 2016 his Re-re-re-amended application deleting the 1^st respondent from the application.  The 2^nd respondent is now the only respondent who is alleged to have been the applicant’s employer at the time of the alleged accident.

3. The 2^nd respondent originally acted in person, and was later legally represented between 9 April 2013 and 29 June 2015, after which date, he has been acting in person.

4. By summons filed on 31 May 2016, the applicant applied for leave to adduce the medical evidence of an orthopaedic and traumatology expert, Dr Ko Put Shui, Peter. Since the summons was not supported by any affirmation, I adjourned the summons despite the 2nd respondent’s neutral stance as to it.

5. The applicant has since filed on 26 June 2016 an affirmation in support. At the restored hearing on 12 October 2016, the applicant was represented by counsel, Mr Andrew Leung, and the 2^nd respondent appeared in person. I dismissed the applicant’s summons, and informed the parties that I would give my reasons for the decision, which I now do.

B.　LEGAL PRINCIPLES GOVERNING THE ADDUCING OF EXPERT EVIDENCE

6. It is submitted that a court, in deciding whether to grant leave to an applicant to adduce expert evidence, should look at the question of relevance and probative value of the proposed scope of expert evidence.

7. This is a trite statement of law (as Mr Leung submitted).   I would further add that the proposed expert evidence is relevant only if it is helpful to the court in arriving at its decision on one or more of the issues to be resolved: Hong Kong Civil Procedure 2016 (“HKCP”), para J1/58/3.

8. In addition to the consideration of relevancy, it is also necessary for the court to have regard to an equally pertinent consideration, namely, the party proposing to adduce expert evidence must demonstrate that there is a need for such evidence in that it should be shown that the proposed expert is able to provide for the court an expert’s opinion as to the significance of, or inference which may be drawn from, proved facts in a field in which the expert possesses special knowledge and experience going beyond that of the court: HKCP, para J1/58/8.

9. I should also mention that the court, after the Civil Justice Reforms, is under a duty to further the underlying objectives by actively managing cases (see O.1A, r.4 of the Rules of the District Court), which means that the court is required to  exercise greater judicial management of expert evidence. Thus, the right of the parties to adduce expert evidence in civil proceedings, pursuant to the restriction imposed by Order 38 of the Rules of the District Court, is not a matter of course: HKCP, para 38/0/6.

10. With these principles in mind, I will discuss below why the applicant has failed to demonstrate the need for calling his proposed expert.

C. 　The purpose of the proposed medical expert

11. The applicant stated in his supporting affirmation that the  proposed medical expert would help the court “understand the extent of [the applicant’s] injury, the observations of the physical examination, diagnosis and treatment, cause of injury, further treatments, permanent disability of loss of earning capacity in the determination of the amount of compensable payable should liability be established.”[1] . Hence, the proposed adducing of the expert seemed to be for both the issues of liability and quantum.  

12. Mr Leung later clarified at the hearing that the seeking of the expert direction is only to help the court determine the question of liability in relation to the issue of whether the injury to the applicant’s arm was caused by being hit by a bus, or caused by being crushed in a crushing machine.  With this clarification, the proposed expert is to help the court understand only one matter, which is, the cause of the applicant’s injury, rather than the number of matters the applicant had originally stated in his affirmation referred to above.

13. Thus, in order to consider if the proposed expert is relevant to the question of liability, it is necessary to determine, according to the pleadings and the witness statements the parties have filed, what the issues on liability are going to be.

D. 　the parties’ pleaded cases

14. According to the applicant’s Re-re-re-amended application, the applicant averred that on the Accident Date, in an unnamed iron sheet factory situated at the same address as that of the 1^st respondent, the applicant had previously stated in the application, that the applicant’s right arm, while in the alleged course of employment with the 2^nd respondent, was trapped in a compressing machine. As a result, his right arm sustained severe crushing injuries (“Injury”), which later resulted in the surgical amputation of his right arm above his elbow.

15. In the answer filed by the 2^nd respondent’s solicitors, the 2^nd respondent, apart from denying the existence of an alleged employer-employee relationship, put forth a positive averment by averring that the 2^nd respondent met the applicant for the first time on 7 December 2009 in North District Hospital (“Hospital”), when he was asked by a friend to act as an interpreter in a police interview of the applicant. It was alleged that the applicant told the police in the interview that the Injury was caused in a traffic accident.

E.　 the parties’ evidence 

E.1　The applicant’s

16. The applicant has filed two witness statements in which, the applicant, apart from setting out the circumstances of the alleged accident to support his pleaded case, he denies that his injury was caused in a traffic accident.  It is alleged that the 2nd respondent had threatened and told him not to disclose the true cause of the Injury.  Due to the alleged threat, the applicant stated that he had lied to his treating doctor, Dr Yiu Hon Wah (“Dr Yiu”), the arthopedic doctor of the Hospital, about the real cause of the Injury. Instead of telling him the alleged truth that the Injury was caused by a compressing machine, he had lied to him saying that the Injury had been caused in a traffic accident. The applicant only later told Dr Yiu that the Injury was caused in an industrial accident, not in a traffic accident, after Dr Yiu kept questioning him about the cause of the Injury. The applicant’s brother later reported the Injury to the police after Dr Yiu had advised the applicant to do so.

17. The applicant, however, denies that he had told the police on 7 December 2009 that the Injury was caused in a traffic accident as the 2^nd respondent alleged. It is averred that the 2^nd respondent, while interpreting for him, had screened and doctored his statement made to the police.

18. The applicant has no eye witness to the alleged accident although he had filed statements of two witnesses – his younger brother, Asim Dar Tahir, and Dr Yiu.  In his statement, the younger brother states that he first saw the applicant in the Hospital on the Accident Date.

19. Dr Yiu in his witness statement, states that on the Accident Date, the applicant had told him that the Injury was caused by his being hit by a bus. However, Dr Yiu opined that the Injury was not consistent with the applicant’s stated cause of having been hit by a bus, but was more likely to have been caused by crushing by a machine. The applicant only later told Dr Yiu that the Injury had been caused by the crushing by a machine.

E.2　The 2^nd respondent’s 

20. In his witness statement, the 2^nd respondent alleges that on 7 December 2009, the applicant, in the presence of his two friends, Mehfooz Rana (“Rana”) and Waris Muhammad (“Waris”), had allegedly told the police that the Injury was caused by a truck in a traffic accident.  The 2^nd respondent has also filed the witness statements of Rana and Waris, who took the applicant to the Hospital on the Accident Date. It is stated that when they saw the applicant, the applicant was sitting at the footpath at Peng Che Road with a bleeding right arm.

F.　THE ISSUE

21. In his written submission, Mr Leung stated that the question of whether the Injury was caused by the hitting by a bus, or by being crushed in a crushing machine, is a live issue, and that the proposed medical expert evidence would conclusively decide whether the Injury was a crushed injury or traffic accident related.

22. According to the discussion in Sections D and E above, I do not agree with Mr Leung’s submitted issue on liability. On the pleadings as well as the evidence the parties are going to adduce at trial, I do not think that the 2^nd respondent is taking issue with the nature of the Injury.  Neither, will Dr Yiu’s evidence, which, according to his witness statement, is a mixture of facts and opinion (on the probable cause of the Injury), be challenged (as the 2^nd respondent had confirmed at the hearing).

23. More importantly, it is also observed that insofar as the nature of the applicant’s Injury is concerned, the applicant has in fact exhibited to his supporting affirmation Dr Yiu’s medical report dated 1 February. In his report, Dr Yiu, who treated the applicant’s Injury on the Accident Date, described the applicant’s injury to be “right forearm severely crushed injury”. He opined that the injury was not consistent with the hitting by a vehicle as the applicant had initially told him. 

24. The real issue on liability will therefore be whether the Injury which the applicant suffered on the Accident Date was sustained in an accident in the course of employment with the 2^nd respondent.

25. It is my view that the positive plea that the 2^nd respondent has put forth in his answer raises factual disputes that tend to go to the question of credibility. The court will need to resolve at the trial whether: (i) the applicant had told the police that the Injury was sustained in a traffic accident as the 2^nd respondent alleged or an industrial accident as the applicant averred; (ii) if it were to be the former, whether what the applicant had told the police was a lie.  

26. For these reasons, I am not satisfied that the proposed expert is needed to resolve the issues in dispute. I also consider that the preparation of and the adducing of the evidence of the proposed medical expert is not conducive to the underlying objectives of the Civil Justice Reforms as this would further delay the proceedings and increase costs. Given the time that these proceedings have taken, I should exercise greater control of the case in ensuring that this application be dealt with as expeditiously as practicable.  Hence, I gave further directions for trial at the end of the hearing.